Saturday, April 12, 2003

I think the best passage from Justice Thomas's dissent in the Virginia cross-burning case was this passage discussing the plurality's decision to strike down the Virginia law insofar as it allowed a "presumption" that any cross-burning was done with the intent to intimidate:

What is remarkable is that, under the plurality’s analysis, the determination of whether an interest is sufficiently compelling depends not on the harm a regulation in question seeks to prevent, but on the area of society at which it aims.

For instance, in Hill v. Colorado, 530 U.S. 703 (2000), the Court upheld a restriction on protests near abortion clinics, explaining that the State had a legitimate interest, which was sufficiently narrowly tailored, in protecting those seeking services of such establishments "from unwanted advice" and "unwanted communication." In so concluding, the Court placed heavy reliance on the "vulnerable physical and emotional conditions" of patients.

Thus, when it came to the rights of those seeking abortions, the Court deemed restrictions on "unwanted advice," which, notably, can be given only from a distance of at least 8 feet from a prospective patient, justified by the countervailing interest in obtaining abortion.

Yet, here, the plurality strikes down the statute because one day an individual might wish to burn a cross, but might do so without an intent to intimidate anyone. That cross burning subjects its targets, and sometimes an unintended audience, to extreme emotional distress, and is virtually never viewed merely as "unwanted communication," but rather, as a physical threat, is of no concern to the plurality. Henceforth, under the plurality’s view, physical safety will be valued less than the right to be free from unwanted communications.

Thomas is absolutely right. It is remarkable to contrast the plurality's solicitude towards people who might want to burn crosses without any desire to intimidate (think of all the poor, misunderstood cross-burners whose hearts are pure in this regard), with the Court's lack of solicitude towards people who were subject to up to 6 months in jail for nothing more than peacefully handing out leaflets on a public sidewalk.